Issues of concern to people who live in the west: property rights, water rights, endangered species, livestock grazing, energy production, wilderness and western agriculture. Plus a few items on western history, western literature and the sport of rodeo... Frank DuBois served as the NM Secretary of Agriculture from 1988 to 2003. DuBois is a former legislative assistant to a U.S. Senator, a Deputy Assistant Secretary of Interior, and is the founder of the DuBois Rodeo Scholarship.

Monday, February 04, 2013

A real gunfight in the Old West

by William Perry Pendley

As defenders of the Second Amendment grapple with President Obama’s second-term onslaught against the “right to keep and bear arms,” a rural Colorado man is already in federal court in Denver challenging the Obama administration’s first-term refusal to adhere to the commands of the Constitution. Briefs have been filed and oral arguments await in Bonidy v. U.S. Postal Service, a gun rights case that could eventually reach the Supreme Court.

Tab Bonidy, who lives in rural Colorado outside of Avon—a tiny town in Eagle County, two hours west of Denver — is licensed to carry a handgun and regularly carries one for self-defense from wild animals and criminals whenever he drives the 10 miles roundtrip from his home, where mail delivery service is not available, into Avon to collect his mail. On his arrival in Avon, however, he is barred by a Postal Service regulation from carrying his firearm, or even locking it in his car, on Postal Service property. The Postal Service regulation, which was renewed in 2007, provides: “Notwithstanding the provisions of any other law, rule or regulation, no person while on Postal property may carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, or store the same on Postal property, except for official purposes.”

This regulation, which carries a $5,000 fine or imprisonment for 30 days, or both, is much more sweeping than the federal statute, which prohibits private possession of firearms in all federal facilities, but exempts firearms carried “incident to hunting or other lawful purposes.” (A total ban exists for federal court facilities.) In addition to being much stricter than federal law, the Postal Service regulation was promulgated prior to the Supreme Court’s landmark decision in Heller v. District of Columbia, which recognized for the first time an individual’s right to keep and bear arms.

In July 2010, Mr. Bonidy wrote the Postal Service and asked it to withdraw its regulation, which is overly broad and, given Heller, of dubious constitutionality. The Postal Service refused. Therefore, in October 2010, Mr. Bonidy, joined by the National Association for Gun Rights, filed a federal lawsuit in Denver. U.S. Department of Justice attorneys, defending the Postal Service, have twice moved to dismiss the suit. The judge denied the motion both times.

The argument by the Department of Justice is straightforward. Second Amendment rights are limited to the home. Moreover, Postal Service property is sensitive because the Postal Service says so. Thus, its regulation is reasonable. In addition, in reviewing the Postal Service’s regulation, the district court should defer to the expertise of the Postal Service. Finally, argues the Obama administration, unlike most other constitutional protections, the “right to keep and bear arms” is not subject to strict or even intermediate judicial scrutiny. That is, the federal government must simply demonstrate its regulation is “narrowly tailored” to serve a “compelling governmental interest.”

Mr. Bonidy argues that the Second Amendment guarantees his right to carry a firearm for self-defense in case of confrontation, that his right to do so is clear from the Constitution’s text, which is illustrated by the English Common Law and that it has long been protected by the states. The Postal Service’s Avon property is hardly “sensitive,” especially in light of the Obama administration’s argument that any property that serves a “quintessential government function” is “sensitive” and hence a government-decreed “gun-free zone.” In fact, the Avon post office is open to the public and lacks any indication of being a sensitive place. Finally, although the Postal Service may have a compelling governmental interest when it seeks to protect lives and the mail, its total ban is not “narrowly tailored” to serve those interests.

In the long battle now beginning to preserve the Second Amendment, it is fitting that an initial and important skirmish occurs out West.

William Perry Pendley is president of Mountain States Legal Foundation in Denver.